Feds Fire Back on Title IX Gender Rule

TALLAHASSEE — The Biden administration has urged a U.S. district judge to reject efforts by Florida and other states to block a new federal rule about sex-based discrimination in education programs.

Florida, Alabama, Georgia, South Carolina and four organizations filed a lawsuit in April to challenge a rule that prevents discrimination based on sexual orientation and gender identity. The plaintiffs are seeking a preliminary injunction against the rule, which is designed to help carry out Title IX, a landmark 1972 law that bars discrimination in education programs based on sex.

U.S. Department of Justice attorneys last week filed a 70-page document arguing that the request for a preliminary injunction should be denied.

“Granting preliminary relief would significantly harm the government’s interests in preventing such discrimination,” the document said. “Sex discrimination in educational environments has devastating consequences, including the effects of harassment based on sexual orientation and gender identity.”

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The rule and the lawsuit, which is filed in the federal Northern District of Alabama, came amid numerous moves by Florida and other Republican-led states in recent years to pass laws and regulations about LGBTQ people. For example, states have prevented transgender students from using school bathrooms that don’t match their sex assigned at birth and blocked or restricted treatments such as puberty blockers and hormone therapy for people with gender dysphoria.

Florida last month also filed a separate lawsuit challenging a federal health-care rule that prevents discrimination based on gender identity and sexual orientation.

In the education case, U.S. District Judge Annemarie Carney Axon has scheduled a hearing July 1 in Birmingham, Ala., on the request by the states and other plaintiffs for a preliminary injunction. The rule, which was finalized in April, is scheduled to take effect Aug. 1.

The lawsuit alleges, in part, that the Biden administration overstepped its legal authority in extending the Title IX regulations to apply to discrimination based on sexual orientation and gender identity. It also contends that the rule would clash with the states’ decisions.

“The rule conflicts with many of the state plaintiffs’ laws that govern public institutions of higher education and primary and secondary education, including laws involving harassment, bathrooms, sports, parental rights and more,” the lawsuit said. “The rule thus impedes the state plaintiffs’ sovereign authority to enforce and administer their laws and creates pressure on the state plaintiffs to change their laws and practices.”

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But in the document filed last week, Justice Department attorneys wrote that the plaintiffs “fail to show that the rule conflicts with any governing legal precedent, with the First Amendment or that it is otherwise arbitrary or capricious.”

“Plaintiffs’ alleged harms are largely speculative and cannot establish irreparable injury justifying preliminary relief,” the document said. “Moreover, the public interest and balance of equities weigh against granting plaintiffs’ motion, as enjoining the rule would substantially harm the government’s interest in preventing discrimination in federally funded educational programs and activities. Accordingly, the court should deny plaintiffs’ motion (for a preliminary injunction).”

The Justice Department attorneys also cited a 2020 U.S. Supreme Court decision in an employment-related case, Bostock v. Clayton County. That opinion said an employer “who fires an individual merely for being gay or transgender violates” a different law, Title VII of the Civil Rights Act of 1964.

The document filed last week argued the “same reasoning applies to the nearly identical prohibition on sex discrimination in Title IX.”

Also, the Justice Department attorneys wrote that the rule does not apply to issues about eligibility for playing on athletic teams — an issue that has spurred widespread controversy. The document said the federal government is addressing the athletics issue through a separate rule-making process.

The lawsuit names as defendants the U.S. Department of Education and Education Secretary Miguel Cardona. The four groups that are plaintiffs in the case are the Independent Women’s Law Center, the Independent Women’s Network, Parents Defending Education and Speech First.

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